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Allegation

Allegation as amended at the hearing

Whilst registered with the Health and Care Professions Council as a Physiotherapist and employed by the Guernsey Therapy Group, you:

1. On or around 30 June 2017, had sexual intercourse with Patient A.2. On or around 20 September 2017, accessed the confidential patient contact record of Patient A in order to obtain her personal mobile telephone number with no professional reason for so doing.3. On or around 29 September 2017, removed the treatment entry record of 20 June 2017, which stated ‘review at island games if req’d’ from Patient A’s treatment record.4. Between 20 September and 21 September 2017, contacted Patient A on her mobile telephone number on at least 5 occasions with no professional reason to do so.5. The matter described at particular 1 was sexually motivated. 6. The matter described at particular 3 was dishonest.7. The matters described at particulars 1 to 6 constitute misconduct.8. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary MattersService of Notice1. The notice of this hearing was sent to the Registrant at his address as it appeared on the register on 10 May 2019. The notice contained the date, time and venue of today’s hearing. 2. The Panel accepted the advice of the Legal Assessor, and is satisfied that notice of today’s hearing has been served in accordance with Rule 6(1) of the Conduct and Competence Rules 2003 (the “Rules”).Proceeding in the absence of the Registrant3. The Panel then went on to consider whether to proceed in the absence of the Registrant pursuant to Rule 11 of the Rules. In doing so, it considered the submissions of Mr Chalmers on behalf of the HCPC. 4. Mr Chalmers submitted that the HCPTS has taken all reasonable steps to serve the notice on the Registrant. Mr Chalmers further submitted that the Registrant has not engaged with the HCPC, nor with the HCPTS, and that an adjournment would serve no useful purpose. The Registrant’s last contact to the HCPC was an email dated 6 September 2018. Mr Chalmers drew the Panel’s attention to that email in which the Registrant stated:“I just wanted to inform you that I am no longer practicing [sic] as a physiotherapist and also that I never renewed my HCPC registration earlier in the year. However I still see my name is on the registry from 01/05/18 – 01/05/20, despite not renewing my membership by the 27/04/18...”5. Mr Chalmers reminded the Panel that there was a public interest in this matter being dealt with expeditiously and that witnesses were in attendance.6. The Panel accepted the advice of the Legal Assessor. He advised that, if the Panel is satisfied that all reasonable efforts have been made to notify the Registrant of the hearing, then the Panel had the discretion to proceed in the absence of the Registrant. He cautioned the Panel that the discretion was to be exercised with care and caution as set out in the case of R v Jones [2002] UKHL 5.7. The Legal Assessor also referred the Panel to the case of GMC v Adeogba and Visvardis [2016] EWCA Civ 162 and advised the Panel that the Adeogba case reminded the Panel that its primary objective is the protection of the public and of the public interest. In that regard, the case of Adeogba was clear that “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”.8. It was clear, from the principles derived from case law, that the Panel was required to ensure that fairness and justice were maintained when deciding whether or not to proceed in a Registrant’s absence.9. The Panel was satisfied that all reasonable efforts had been made by the HCPTS to notify the Registrant of the hearing. It was also satisfied that the Registrant was aware of the hearing.10. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPTS practice note entitled ‘Proceeding in the Absence of a Registrant’. The Panel weighed its responsibility for public protection and the expeditious disposal of the case with the Registrant’s right to a fair hearing. 11. In reaching its decision the Panel took into account the following:• The Registrant has not made an application to adjourn today’s hearing;• The Registrant has dis-engaged with the process and has not submitted further written representations;• The witnesses have attended from quite a distance and are ready to give evidence; and• There is a public interest that matters are dealt with expeditiously.12. The Panel was satisfied that the Registrant has voluntarily absented himself from the hearing. It determined that it was unlikely that an adjournment would result in the Registrant’s attendance at a later date, in the light of the non-engagement of the Registrant. Having weighed the public interest for expedition in cases against the Registrant’s own interest, the Panel decided to proceed in the Registrant’s absence.

Amendment of Allegation13. Mr Chalmers, on behalf of the HCPC, applied to amend the Allegation by changing the wording of Particular 1 from “On or around 30 June 2017, had a relationship of a sexual nature with Patient A” to “On or around 30 June 2017, had sexual intercourse with Patient A”. Mr Chalmers submitted that the amendment sought was consistent with the evidence before the Investigating Committee, and that it served to clarify the allegation by giving further and better particulars. He also applied for grammatical errors to be corrected and other amendments to ensure that the reference to Patient A was consistent. He drew the Panel’s attention to the letter sent to the Registrant on 25 February 2019 informing him of the main proposed amendment and of his right to make representations to the contrary. No representations have been received. 14. The Panel accepted the advice of the Legal Assessor, who advised that it was open to the Panel to amend the allegation, provided the Panel was satisfied that no injustice would be caused by the amendments. The Panel considered that the amendments sought did not change the substance of the allegation. The amendments did clarify the allegation and would not cause injustice, as it is always preferable that allegations are as clear as possible so that registrants are clear what is alleged against them in order for them to respond. The Panel therefore allowed the amendments to be made. The amended Allegation is as set out above.

Background15. The Registrant commenced employment with Guernsey Therapy Group Limited (“GTG”) in January 2016 as a Band 6 Physiotherapist in the musculoskeletal outpatient clinic.16. On or around 25 March 2017 Patient A attended GTG for physiotherapy treatment prior to competing in the Island Games 2017 as part of the Guernsey Team. The Registrant was the recommended physiotherapist for Patient A, as the Registrant had volunteered to attend the Island Games as a member of the medical team supporting the athletes.17. The Registrant treated Patient A at GTG until 20 June 2017, this being the last appointment recorded. It is alleged that in respect of this appointment the Registrant noted on Patient A’s patient notes at GTG that her condition was to be reviewed at the Island Games, if required.18. Patient A and the Registrant attended the Island Games as part of the Guernsey Team and support team between 24 June and 30 June 2017 in Gotland, Sweden.19. On 30 June 2017, the closing ceremony of the Island Games took place, following on from which it is alleged that the Registrant and Patient A engaged in consensual sexual relations.20. On return from the Island Games, complaints were submitted in September 2017 in relation to the Registrant’s conduct by Patient A’s husband, and then by Patient A in November 2017.21. Patient A alleged that on or around 20 and 21 September 2017 she was contacted by the Registrant by phone and she suggested that the only way he could have obtained her number was by accessing her patient records at GTG.22. On or around 29 September 2017, it is alleged that the Registrant accessed Patient A’s medical notes in GTG and altered the plan on the patient records for the appointment on 20 June 2017 to indicate that Patient A was discharged by the Registrant at this appointment. It is alleged that the Registrant altered the patient record by deleting the entry stating that Patient A’s condition was to be reviewed at the Island Games, if required, to state that Patient A was discharged, by entering “D/C”.23. The Registrant resigned from his role at GTG on 26 April 2018. This matter was referred to the HCPC.

Decision on Facts24. The Panel considered all of the evidence in this case together with the submissions made by Mr Chalmers on behalf of the HCPC.25. The Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof rests with the HCPC, and that the Registrant need not disprove anything. The Legal Assessor also reminded the Panel that the standard of proof is the civil standard, namely the balance of probabilities. 26. The Panel heard oral evidence from the following witnesses on behalf of the HCPC:• Patient A, an athlete who had been under the care of the Registrant prior to the Islands Games for 12 weekly sessions.• Dr G, who is a General Practitioner, and who was the team Doctor for the Guernsey Island Games team.• Mr R, a physiotherapist who was, at the time, Clinical Director of Guernsey Therapy Group Limited, and who chaired the internal disciplinary hearing.27. The Panel also received a bundle of evidence, which included the records of GTG in relation to its investigation and disciplinary proceedings.

Particular 11. On or around 30 June 2017, had sexual intercourse with Patient A.28. Patient A adopted the statement made by her on 3 February 2019 as her evidence. She told the Panel of the circumstances in which the Registrant treated her as her physiotherapist. 29. Patient A confirmed that she had attended the Island Games in 2017 and that the Registrant was her physiotherapist prior to and during the Games.30. Patient A confirmed that she had consensual sexual intercourse with the Registrant on 30 June 2017 after the closing ceremony of the Island Games 2017. She confirmed that she had been drinking alcohol.31. The Panel noted what the Registrant told his employer. He did not deny that he was with Patient A that evening and that ‘something happened’. He confirmed he had been drinking alcohol. In his email to Mr R on 20 January 2018 he stated that he was so inebriated that he was unable to have sex with Patient A. The disciplinary hearing notes of 29 November 2018, produced to the Panel, records that the Registrant ‘reported something happened (referring to an intimate act between SE and [PATIENT A]) but that he then ‘blacked out’ and when he awoke he found [PATIENT A] trying to again become intimate with him.” Dr G’s evidence was that in a meeting with the Registrant on 29 November 2017 “from memory, he said that after the Closing Party he had slept with Patient A”.32. The Panel determined that the Registrant did have sexual intercourse with Patient A on 30 June 2017 on the balance of probabilities.33. The Panel found Particular 1 proved.

Particular 22. On or around 20 September 2017, accessed the confidential patient contact record of Patient A in order to obtain her personal mobile telephone number with no professional reason for so doing.34. The Panel noted that the only assertion that the Registrant accessed Patient A’s confidential patient contact record in order to obtain her personal mobile telephone number came from Patient A herself. 35. In her oral evidence, Patient A stated that her assertion was speculation on her part on the basis that she had not given the Registrant her mobile number. She did not know of any other way, in her knowledge, that he could have obtained her number.36. The Panel determined that there was no direct evidence that the Registrant accessed Patient A's record on or around 20 September 2017. There were other plausible possibilities as to how the Registrant obtained Patient A's telephone number e.g. Patient A told the Panel that she had contacted him on Facebook to which the Registrant did not reply, Dr. Gee told the Panel that the medical questionnaires of the athletes were available to the therapists throughout the period of the Games only. Patient A's medical questionnaire was produced to the Panel, and it was clear that Patient A's telephone number was on it.37. The Panel did not find that the HCPC has provided sufficient evidence to prove Particular 2 on the balance of probabilities.

Particular 33. On or around 29 September 2017, removed the treatment entry record of 20 June 2017, which stated ‘review at island games if req’d’ from Patient A’s treatment record.38. It is clear from the evidence before the Panel from the audit of Patient A’s treatment record for 20 June 2017 that the Registrant had altered this treatment record. There was a clear audit trail demonstrating this had been altered on 29 September 2017, this being the day after the matter was discussed at a meeting between the Registrant and Investigating Officer. Furthermore, the Disciplinary Hearing Meeting Notes for 29 November 2018 records the Registrant admitting that he had altered that record because he had panicked and changed the record out of “pure fear and anguish”. 39. The Panel finds Particular 3 proved on the balance of probabilities.

Particular 44. Between 20 September and 21 September 2017, contacted Patient A on her mobile telephone number on at least 5 occasions with no professional reason to do so.40. Patient A told the Panel that after they returned from the Island Games, her husband attempted to contact the Registrant’s girlfriend to inform her of what had happened by attending her place of work on three occasions in person and by making two telephone calls. Patient A said that when the Registrant had found out her husband had been attempting to contact the Registrant’s partner, the Registrant attempted to contact her by phone on 20 and 21 September 2017. She said, in her written statement, that on the first occasion when she picked up the phone, the Registrant hung up when she spoke. She said on the second occasion the Registrant identified himself only. On subsequent occasions Patient A said that her husband answered the phone. 41. The Panel also had the Registrant's mobile phone records for the relevant period before it. They demonstrate that the Registrant did call Patient A's mobile phone on five occasions between 20 September and 21 September 2017.42. From the evidence before it, there was a professional element in Patient A’s husband attending the Registrant’s and his partner’s workplace. However, the Panel’s decision was that the main reason for the calls was a personal one as it was more likely that the Registrant was attempting to contact Patient A to ascertain the reason why her husband was attempting to contact his girlfriend.43. The Panel finds Particular 4 proved on the balance of probabilities.

Particular 55. The matter described at particular 1 was sexually motivated.

44. The Panel’s decision is that the act of sexual intercourse is by its very nature, sexually motivated.45. The Panel found Particular 5 proved on that basis.

Particular 66. The matter described at particular 3 was dishonest.46. In deciding whether this particular is proved, the Panel was aware that dishonesty is a very serious allegation to be faced by any professional. The Panel took into account that the Registrant was a man of good character, and he had not been reported to the HCPC for any disciplinary matter prior to this one.47. The Panel reminded itself of the advice of the Legal Assessor. He had drawn the Panel’s attention to the test for dishonesty in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. 48. There were 3 questions to be answered when considering whether the Registrant's actions were dishonest - what was it that he did? Why did he do it? Would a reasonable and honest person consider his actions and reasons to be dishonest?49. What the Registrant did is set out in particular 3. In deciding what the probable reason for the Registrant's actions were, the Panel took into account the following:(a) When the incident with Patient A was raised with the Registrant at a meeting on 28 September 2017, he reported that he was unsure how the patient had been discharged on the electronic record but confirmed that no unprofessional interactions had occurred between him and any patient whilst under his care;(b) The Registrant then altered the record in question the following day on 29 September 2017, giving the impression that Patient A had been discharged prior to the Island Games;(c) In an email 12 October 2017 from the Registrant to the Investigating Officer, he does not mention the alteration and states “On further checking this it would appear that she was discharged on PPS on the 20/6…”;(d) there was no explanation on the altered entry to indicate that the entry had been altered;(e) the Disciplinary Hearing Meeting Notes of 29 November 2018 records that the Registrant confirmed that he did alter the patient records of Patient A out of pure fear and anguish because he had panicked; 50. The Panel also noted that the Registrant was recorded as saying that he understood the serious nature of his actions in relation to Patient A's medical record, and that he was in a situation where his relationship had broken down and he was fearful of losing his job. He acknowledged that he was not thinking straight at the time, and that he did not know why he did not report his actions.51. The Panel determined that the reason the Registrant had altered Patient A's medical record was to give the impression that at the time when he had sexual intercourse with her, she was no longer his patient.52. The Panel determined that ordinary decent people would consider the Registrant’s actions as set out above to be dishonest.

Decision on GroundsParticulars 1 and 5

53. The Panel heard the submissions of Mr Chalmers. It also accepted the advice of the Legal Assessor. The Panel were reminded that misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances”, and that misconduct is qualified by the word “serious”. 54. The Panel was aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards, would be sufficiently serious such as to amount to misconduct in this context. 55. The Panel has had careful regard to the context and circumstances of the matter found proved. The Panel had regard to the Standards of conduct, performance and ethics issued by the HCPC.56. Having found Particulars 1 and 5 of the Allegation proved, the Panel went on to consider whether the Registrant’s conduct in relation to these two linked Particulars was so serious that they amounted to misconduct. 57. The Panel noted the evidence of Dr G. In his reference 12 December 2017 for the Registrant in respect of this matter he stated the following:“By midday on the Friday we cleared away and packed up the Medical Room. From this point there is very little in the way of competitions still going on and so the expectation is that we will not be treating any more competitors. This gives us time to pack all the kit and plinths up ready for the flight home. From this point on I don’t think Stuart was actively treating anyone.For most people the Closing Ceremony marks the end of the Games and a time to celebrate the achievement of Team Guernsey and also to have a chance to meet with everyone in a social setting - the hard work having been done. In Gotland they had made two nightclubs available for the competitors, support staff and indeed all those who had attended or contributed to the Games.”Dr G said in his statement on 30 June 2017 the final day of the Island Games that “I informed the medical team that it would be reasonable to assume there would be no routine treatment needed from midday”. 58. In his oral evidence, Dr G confirmed that the above was the common view held by most people at the Games. He also told the Panel that there was no contract nor policy in place at the time to specify when the medical team are absolved from their duty of care to the athletes. 59. The Panel determined that it was reasonable for the Registrant to assume that the athletes under his care had been discharged, and that he was entitled to socialise with them. These were the circumstances leading to the sexual interaction between the Registrant and Patient A. The evidence is clear that both of them were drunk at the time.60. The Panel also determined that at that time, Patient A was no longer under the care of the Registrant. In her oral evidence, Patient A confirmed her treatment was to enable her to compete in the Games and that she had no further treatment planned with the Registrant following the closing of the Games as she was likely to have an operation. The Panel’s view was that they were both consenting adults engaging in consensual sex. This was a single incident in an otherwise unblemished career, that occurred in unique and unusual circumstances. The Panel determined that the behaviour of the Registrant was disappointing, even irresponsible. However the Panel determined that the Registrant’s behaviour was not so serious as to amount to the statutory ground of misconduct.61. Accordingly the Panel finds that the fact found proved in Particulars 1 and 5 do not amount to misconduct.

Particulars 3 and 662. In relation to these Particulars, they involve the amendment of Patient A’s records in such a way that they give a misleading impression. Furthermore it was intended by the Registrant to give that misleading impression. This is a serious failing, as patient records must be as accurate as possible, if clinicians are to provide the best care for patients. The fact that the Registrant had a dishonest intent when making the amendment aggravates his conduct. There was however no consequences, risk of harm, or impact on Patient A’s treatment as a result of this.63. The Panel found the Registrant to be in breach of Standard 9.1 of the HCPC’s Standards of conduct, performance and ethics “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.” 64. Notwithstanding this was a single incident in an otherwise unblemished career, the Panel determined that the Registrant's actions were so serious that they amounted to misconduct.Particular 465. In relation to Particular 4, the Panel has already determined that there was no real professional reason for the Registrant contacting Patient A between 20 September and 21 September 2017.66. The Panel reminded itself that the definition of misconduct includes consideration of the surrounding circumstances. 67. The evidence of Patient A was that when she took the first call from the Registrant, all he did was identify himself and hang up. Her husband answered the last call and told the Registrant not to call again. The Registrant did not call again.68. The evidence also demonstrates that the husband of Patient A had been repeatedly attempting to contact the girlfriend of the Registrant, thereby causing her alarm and distress and as a result of this the Registrant had phoned Patient A.69. The Panel determined that in the unusual circumstances of Patient A’s husband persistently attempting to contact the Registrant’s partner, the Registrant’s actions in phoning Patient A was not a serious falling short and was not misconduct.

Decision on Impairment70. The Panel then went on to consider, whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct in relation to Particulars 3 and 6. The Panel heard the submissions of Mr Chalmers and it accepted the advice of the Legal Assessor.71. The Legal Assessor drew the Panel’s attention to the approach set out in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin), and the HCPC’s practice note on “Finding that Fitness to Practise is ‘Impairment’”. He reminded the Panel that there was a personal and public component when considering whether the Registrant’s fitness to practise was currently impaired.72. The Panel accepted that the alteration made by the Registrant to Patient A’s medical record did not put her or any other patient at unwarranted risk of harm. However his actions did breach a fundamental tenet of the profession; namely to act honestly, and to maintain accurate patient records. His actions had the propensity to bring the profession into disrepute.73. The Panel considered what the Registrant had to say about his conduct by referring to the Disciplinary Hearing Meeting Notes. The majority of what the Registrant had to say related to what had occurred between him and Patient A on the night of the closing ceremony. However he does demonstrate insight in relation to his actions in dishonestly altering Patient A’s medical records. He accepted that he had altered the records, he gave reasons why he altered the records, and that it would have been better to be honest instead of burying his head in the sand in doing what he did. 74. The Panel took into account the unusual circumstances of this case, the Registrant’s unblemished record, and the positive written reference from Dr G and determined that there was sufficient insight such that there was a low risk of repetition of misconduct. In all the circumstances, the Panel do not find impairment on the personal component. 75. However, the Panel determined that the Registrant’s misconduct was such that the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in these circumstances. A reasonable member of the public with full knowledge of the information before the Panel, would be concerned if no finding of impairment were made in circumstances where a patient's medical record had been dishonestly altered, regardless of how minor the alteration or that no harm, or risk of harm was incurred.76. Therefore, the Panel determined that the Registrant’s fitness to practise is currently impaired on public interest considerations.

Decision on Sanction77. Having determined that the Registrant’s fitness to practise is currently impaired, the Panel then considered what sanction, if any, should be imposed. It took into account the submissions of Mr Chalmers. 78. The Panel accepted the advice of the Legal Assessor. He advised the Panel that it should bear in mind that its over-arching duty is: (a) to protect, promote and maintain the health, safety and wellbeing of the public; (b) to promote and maintain public confidence in the professions regulated by the HCPC; (c) to promote and maintain proper professional standards and conduct for members of those professions; (d) to protect the public and also the wider public interest, which includes maintaining and declaring proper standards of conduct and behaviour, maintaining the reputation of the profession, and maintaining public confidence in the profession and the regulatory process.79. The Panel had regard to all the evidence presented, and to the HCPTS’ recently updated Sanctions Policy. The Panel reminded itself that a sanction is not to be punitive although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality when determining what the appropriate sanction in this case should be. 80. The Panel was aware that any sanction it imposes must be the least restrictive sanction that, in this case, is sufficient to protect the public interest. It should take into consideration the aggravating and mitigating factors in the case. The Panel also reminded itself that it must apply the principle of proportionality, weighing the Registrant’s interest against the public interest. Panel’s consideration and decision81. The Panel has had regard to all the evidence presented, and to the HCPTS’ Sanctions Policy. This was not a case where the Registrant’s clinical skills were in question. There are no identifiable areas of his practice that might benefit from re-training.82. The Panel took into account the following factors:a) it was a single, albeit positive, act of dishonesty;b) the Registrant acted dishonestly because he panicked, due to the unique and unusual circumstances and the likely impact on his personal and professional life;c) no actual harm was caused to any patient or service user; d) he has shown sufficient insight;e) the Registrant admitted his actions at his employer’s Disciplinary Hearing;f) there is a low risk of repetition;g) the Registrant’s previous unblemished record as a physiotherapist and the positive character reference provided by Dr G; andh) although dishonesty is a serious matter, the dishonesty in this case was at the lower end of the spectrum.83. The Panel first considered taking no action but concluded that the misconduct in this case was too serious for no action to be appropriate. 84. The Panel then considered whether to make a Caution Order. It bore in mind that a caution order would not restrict the Registrant’s right to practise. The Panel was satisfied that it was conduct that was out of character for the Registrant. The Registrant has been held to account, and that proper standards of practice and behaviour have been declared by the finding of misconduct and current impairment on public interest grounds alone. The Panel’s decision on impairment will be published, and it will carry with it the moral opprobrium attached to its finding of misconduct.85. The Panel determined that, in this case, the public interest would be met with the imposition of a caution order as a sanction. The Panel determined that a member of the public who was fully informed of the above considerations would countenance the Registrant’s return to unrestricted practice to continue his service to the public, should he wish to do so. 86. In these circumstances, the Panel concluded that a caution order would be sufficient to satisfy the wider public interest. 87. The Panel determined that the appropriate and proportionate period for which the Caution Order should be imposed is 3 years, given the need for public confidence to be upheld and a deterrent effect on the profession at large.88. The Panel determined that a conditions of practice order was not appropriate in the circumstances and that a suspension order would be unduly punitive and disproportionate as the public interest would be satisfactorily marked by the three year term of the Caution Order. There is also the public interest in allowing a competent and otherwise well-regarded Registrant to remain in practice.

Order

Order: That the Registrar is directed to annotate the register entry of Mr Stuart Evans with a caution which is to remain on the register for a period of three years from the date this order comes into effect.